Replacing a dietitian with a food safety auditor and quietly adding a second pupil: annulment plus EUR 3,461.50 in damages
The Council of State annuls the school meals contract awarded by Sint-Martens-Latem to Compass Group because the test panel that performed the organoleptic test had a different composition than announced in the specifications — no dietitian, two pupils instead of one — and grants Delimeal EUR 3,461.50 in damages (50 % of 10 % of its offer price of EUR 69,230 excl. VAT, one school year).
What happened?
In 2021 the municipality of Sint-Martens-Latem issued an open procedure for the supply of school meals to three primary schools, with a base order for 2021-2022 and three optional extensions of 10 months each. The specifications used five award criteria: price (30), organoleptic test (30), menu variety (20), ordering and delivery (10), sustainability (10). For the organoleptic test (taste test) and menu variety, the specifications explicitly defined the test panel: 'the school principal, a teacher, a pupil, the internal prevention adviser and an expert (dietitian)' — five members, with a specific nutritional profile via the dietitian. Five firms bid. Compass Group was proposed on 4 October 2021 with 81.06 % at EUR 95,013 excl. VAT (100,713.78 incl. VAT); Delimeal came second with 80 % at EUR 73,383.80 incl. VAT — 37 % cheaper. The award was approved on 11 October 2021. Delimeal sought annulment and EUR 45,864.88 in damages. The Council rejects the first two grounds: choosing to weight quality criteria more heavily than price (70 % vs 30 %) is reasonable for school meals; an organoleptic test may have subjective elements, provided sub-criteria objectivise it as far as possible — which was the case here (appearance, colour, consistency, smell, taste, warmth, each on 5 points). But the third ground succeeded: the actual test panel, per the panel report, consisted of a teacher, a member of the directorate, a prevention adviser, a food safety auditor and TWO pupils — no dietitian, plus an extra pupil. The municipality argued that the food safety auditor was 'a significant added value', that a second pupil was 'more realistic' given the target audience, and that Delimeal's score with a dietitian would hypothetically not have been higher. The Council disagreed. Under the patere legem quam ipse fecisti principle, an authority must follow the rules it set itself in the specifications. It may not change the assessment method after offer opening — 'to exclude any risk of favouritism' (CJEU TNS Dimarso). A change in panel composition can have effect in two ways: it can colour the assessment of offers, and it can have influenced bidders' preparation of their test meals (a dietitian focuses on nutritional balance, a food safety auditor on other things — bidders could have adapted their meals to a different panel). Whether the change was concretely discriminatory does not need to be proven — the deviation alone suffices. The third ground was upheld. The award was annulled. For damages, the Council started from 10 % of the offer price (by analogy with article 16 of the 2013 law, even though this was not 'price only'), limited to one school year (extensions were not automatic and the supplier could not claim damages for them under the specifications): 10 % × EUR 69,230 = EUR 6,923. But Delimeal had only a CHANCE — three regular bidders, not certain it would have been first with a correct panel — which the Council estimated in fairness at 50 %. Final amount: EUR 3,461.50 plus compensatory interest from 11 October 2021.
Why does this matter?
This ruling is a lesson on two things: how strict the Council is about the announced assessment method, and how loss-of-chance damages are concretely calculated. For authorities: as soon as the specifications explicitly set the composition of a jury, panel or assessment committee, that is not a non-binding intention. If someone changes for practical reasons (illness, scheduling), either find a replacement with the same profile, or announce the change in advance through a formal correction. Replacing a dietitian with a food safety auditor and quietly adding a second pupil costs you the award and damages. For bidders: the panel report is your friend. Request it, read it, compare the actual composition with what the specifications announced. Discrepancies are a powerful ground — you don't even need to prove specific harm. For damages claims: 10 % of the offer price is the working benchmark for lost profit (by analogy with the flat rule for price-only awards), and the chance percentage depends on how many serious competitors there were — with three regular offers and a third-ranked far behind, expect 50 %. But extension periods often do not count if they were contractually optional.
The lesson
As authority: only fix in your specifications jury compositions you can really guarantee. Prefer a more general formulation ('a panel of five including at least a school representative and an independent nutrition expert') over an over-specific one ('a dietitian'). Because one deviation costs you the whole award. As a bidder after an unfavourable assessment: immediately request the full panel report and compare names, roles and counts with what the specifications announced. Is there one person more or fewer than the specifications listed? That is a ground for annulment.
Ask yourself
Specifications and award report in hand? Open both side by side at the 'assessment method' chapter. Does every person, profile and count in the panel match what the specifications announced? One unannounced change = potential annulment ground. Quantify damages: your offer price × 10 % × chance percentage (typically 33-50 % with three regular bidders).
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →